A defendant’s mental health issues and substance abuse treatment are mitigating factors that can impact a sentence and often overlooked. In State v. Bhavuk Uppal, Docket No. A-4094-17T3 (App. Div. 2020), the defendant was sentenced to twenty-one years in prison, following his June 2016 guilty pleas to three counts of second-degree reckless death by a vehicle (vehicular homicide), N.J.S.A. 2C:11-5A, DWI, N.J.S.A. 39:4-50 and driving while suspended, N.J.S.A. 39:3-40. The Court (the NJ Appellate Division) affirmed (upheld) the sentence finding that the trial court adequately considered the mitigating and aggravating sentencing factors under N.J.S.A. 2C:44-1. Significantly, the Court said,“the defendant had not been receptive to substance abuse treatment and because he remains untreated, he poses a considerable risk to re-offend.”
In State v. Francis Scanlon, A-1585-18T1 (March 2020), the Court had to decide whether a defendant, operating a John Deere tractor under the influence against traffic on the shoulder a highway, was operating a “motor vehicle” as defined in N.J.S.A. 39:4-50(a) and N.J.S.A. 39:1-1.
N.J.S.A. 39:4-50(a) provides, “a person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more by weight of alcohol in the defendant’s blood.” The term “motor vehicle” is defined in N.J.S.A. 39:1-1 as “all vehicles propelled otherwise than by muscular power, excepting such vehicles as run only upon rails or tracks, low-speed electric bicycles, low-speed electric scooters, and motorized bicycles” and “every device in, upon or by which a person or property is or may be transported upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks or low-speed electric bicycles, low-speed electric scooters, or motorized bicycles.” The Court noted that a tractor is not excluded under N.J.S.A. 39:1-1 and held that the term motor vehicle was broadly worded and intended to include a tractor. The defendant’s conviction was affirmed.
N.J.S. 39:4-50(a) provides penalties for “[a] person who operates a motor vehicle while under the influence of intoxicating liquor, narcotic, hallucinogenic or habit-producing drug, or operates a motor vehicle with a blood alcohol concentration of 0.08% or more.”
On February 10, 2020, the New Jersey Appellate Division held that operation should be “interpreted broadly” to encompass a defendant sitting or sleeping behind the wheel of a car with the engine running because, as a matter of law, this constitutes an “intent to operate a motor vehicle.” State v. Thompson, A-2011-18T4, Approved for Publication, ____ N.J. Super. ____ (App, Div. 2020).
The Court said:
an intoxicated and sleeping defendant behind the wheel of a motor vehicle with the engine running is operating the vehicle within the meaning of N.J.S.A. 39:4-50(a), even if the vehicle was not observed in motion; it is the possibility of motion that is relevant.
The court states a ridged, and I respectfully believe, an incorrect statement of the law as it relates to operation. The court failed to cite or reconcile State v. Daly, 64 N.J. 122 (1973), where the Supreme Court rejected a broad definition of “operation” that would encompass an intoxicated driver behind the wheel of a running car. In Daly, the defendant was seated in his running car with the seat was slightly reclined outside of a bar. Daly told the Officer he “was sitting in the car to keep warm and intended to drive home in a little while.” Daly explained that he was going to “sleep it off.” The Daly Court explained, “in addition to starting the engine, evidence of intent to drive or move the vehicle at the time must appear.”
The court discards the requirement that the State prove the element of operation beyond a reasonable doubt, equating being behind the wheel of a running car with an intent to operate. The Court in Thompson explained, “this opinion expresses nothing new.” It does express a new rule of law; that intent to operate is proven, as a matter of law, when an intoxicated person, awake or sleeping, is found behind the wheel of a car with the engine running. I have filed a petition for certification with the NJ Supreme Court in a case similar to and cited in Thompson, seeking clarification from the NJ Supreme Court in this very significant ruling.